Fair Chance Act

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Widely known as “Ban the Box” laws, California is among the many jurisdictions that have adopted laws limiting the use of criminal background checks in evaluating job candidates. Enacted in 2018, California’s Fair Chance Act generally prohibits employers, with five or more employees, from asking a job candidate about their conviction history before making a conditional job offer. Among other requirements, the Fair Chance Act also places an affirmative duty on employers to provide requisite notices to candidates and to evaluate several factors before withdrawing a job offer due to a candidate’s criminal history. Employers must also provide candidates with the opportunity to explain or provide mitigating information before making a final decision to rescind a job offer. In October 2023, California amended the Fair Chance Act to bolster these notice and evaluation requirements. The 2023 amendment also increased potential employer liability for failure to properly notify and evaluate a job candidate’s criminal history. Proposed legislation in California aims to place stringent requirements on when employers can request a criminal background check in the first instance and how the information obtained must be evaluated. Continue Reading Proposed California legislation may effectively ban criminal background checks

2015 was a hectic year on the New York labor and employment law front, yielding mixed results for employers and, in many instances, creating more questions than answers. A myriad of state and local laws were proposed (and many passed into law), and a rash of federal and state court decisions have re-shaped an array of workplace relations.

Given this overwhelming flurry of activity, we have distilled down the five most important developments with which all New York employers should ensure familiarity – and, more importantly, compliance – as we head into 2016. They are:
Continue Reading 5 Things Every New York Employer Needs to Know Heading into 2016

Less than two months after the effective date of a new law barring employers’ use of credit checks, another new law restricting the pre-employment process takes effect in New York City today, October 27, 2015 (the Fair Chance Act or the Act). As we previously reported here, the Act prohibits employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended. The term “inquiry,” as defined in the Fair Chance Act, includes questions posed to the job applicant him/herself, as well as pre-offer searches of public records and certain consumer reports.

In addition, for employers that intend to take an adverse employment action based on a criminal inquiry made after a conditional offer is extended, the Fair Chance Act prescribes a rigorous notice procedure:

  • First, the employer must provide a copy of the relevant inquiry to the job applicant (in a manner to be determined by the city’s fair employment practices agency, the NYC Commission on Human Rights (NYCCHR)).
  • Next, the employer must perform the analysis set forth in Article 23-A of the State Correction Law to determine whether the applicant’s criminal past warrants disqualification from employment.  The employer must then provide a copy of its analysis to the applicant. Late last week, the NYCCHR published a template form, known as the Fair Chance Notice, for use in such circumstances.
  • Finally, following an applicant’s receipt of these disclosures, the employer must afford the applicant at least three business days to respond. During this period, the employer must hold the position open for the applicant.

Failure to adhere to these stringent protocols may be deemed a violation of the Fair Chance Act.
Continue Reading Reminder for NYC Employers: Ban on Criminal Background Checks Takes Effect Today